Franklin v. Geho.
| Decision Date | 25 June 1887 |
| Citation | 30 W.Va. 27 |
| Court | West Virginia Supreme Court |
| Parties | Franklin v. Geho. |
A motion to exclude all the plaintiff's evidence from the jury is equivalent to a demurrer to the plaintiff's evidence; and the court in determining the facts proven by the evidence will draw inferences more favorable to the plaintiff, when there is a grave doubt, which of two inferences should be deduced; and these inferences will be drawn in favor of the plaintiff to the same extent, as if on like evidence the defendant moved for a new trial.
A forcible entry under our statute giving civil redress by summary proceedings is precisely what would constitute a forcible entry, for which at common law a party might be punished criminally. It therefore lies, when a party enters on land in the possession of another, and either by his behavior or speech gives those who are in possession just cause to fear he will do them some bodily harm, if they do not give way to him. Such just cause to fear, which would make the intruder liable to criminal punishment or to be proceeded against civilly arises from his taking with him such an unusual number of attendants or arming himself in such manner as plainly to show a design to back his pretensions by force; or it may arise from his threatening to kill, maim, or beat those, who continue in possession, or by use of any expressions plainly implying a purpose to use force against those who may make resistance.
A case where a court on motion to exclude, or a jury could properly infer that the act of a party amounted to an unlawful detention of real estate.
In an action of unlawful or forcible entry and detainer a ver- diet finding, that the defendant unlawfully withholds from the plaintiff the land in the summons described, is sufficient; and a judgment may be entered upon it.
Where the only ground, on which the defendant could ask or expect a verdict in his favor is, that he committed an act of trespass only and never detained the possession of the land from the plaintiff, who, he claimed, remained in possession of the land, this Court could not reverse the judgment of the court below in favor of the plaintiff. If the defendant has any ground of complaint, it is only, that costs were adjudged against him; and the appellate court never reverses a case for error in the judgment as to costs only, nor will it entertain the writ of error, if this is all the subject of controversy in the appellate court.
The courts are liberal in allowing parties plaintiff or defendant, after their evidence is closed, to recall witnesses and again examine them to supply omitted facts. If such action of the court is reversible at all, it would only be when the discretion was obviously abused to the prejudice of the opposite party, and in a manner, which, if allowed, would tend to pervert justice.
Statement of the case by Green, Judge:
This was an action for a forcible and unlawful entry and detainer brought by Donald Franklin against Thomas M. Geho in the Circuit Court of Marshall county to recover the possession of a parcel of land thus described in the summons; 90 poles situated in Liberty district, Marshall county, West Virginia, bounded as follows: Beginning at the road, where the posts lately set for fence commences; thence with the same N. 28° E. 4 3/4 poles to a stake; thence S. 75° E. 33 poles with old line and fence to a stake; thence N. 83 1/2° W. 28 1/2 poles to a stake; thence N. 74° W. to the beginning. The defendant moved the court to set aside this verdict and grant Mm a new trial, because the verdict was contrary to the law and the evidence, and because the rulings of the court during the trial were erroneous. On November 14, 1885, the court overruled this motion and entered up a judgment, that "the plaintiff recover of the defendant the possession of the premises described in the verdict of the jury aforesaid and his costs in this behalf expended."
Bills of exceptions were taken during the trial of the case, by which it appears, that the plaintiff alone offered any evidence in the case; and this evidence proved, that the plaintiff owned a farm adjoining the defendant; that an old fence separated the two farms, which fence was within one hundred yards of the defendant's residence; that prior to July 20, 1885, there never had been any controversy as to the division-line between these two farms, the old fence being on the line or supposed to be by the owners of each of the farms; that for about twenty years the plaintiff had owned his farm and lived upon it, and the ninety ^oles named in the summons was a part of his farm adjoining the defendant's farm, and was a meadow, which he had occupied for twenty years, occasionally cultivating it in corn and wheat, but generally keeping it in grass, which he cut; that as usual he cut this meadow just prior to July 20, 1885, and removed a part of the grass cut, leaving a part of it to get drier than it was before removal; that during his absence from home on the morning of July 20, 1885, his neighbor, the defendant, having for some reason concluded, that the old fence was not on the true boundary line between the farms, entered on the plaintiff's farm and commenced putting up a fence along what he claimed to be the true division line between the two farms, which new fence cut off the ninety poles named in the summons from the plaintiff's farm and would have added that much to the defendant's farm; that the plaintiff, when he came home, forbade the defendant to enter on his land and build this fence, but the defendant said, that he would build the fence, as the land, he was enclosing by it, belonged to him as a part of his farm; that the ninety poles so claimed by the defendant had on it an old frame-building, which was unoccupied, but which had been occupied formerly by the plaintiff's father with his consent, and also had on it an orchard; that the plaintiff threatened to have him indicted, but he continued to put up the fence and hauled off the hay, which the plaintiff had cut as aforesaid, claiming it as his; that the plaintiff tried to have him indicted, but the grand jury refused to indict him for this act; that the plaintiff and his sons then pulled down a part of the rail-fence, which the defendant had built as aforesaid; that the defendant put it up again, and the plaintiff pulled it down again; that on August 28, 1885, the defendant went on the land to re-build this fence the third time, and the plaintiff forbade him to go on with the building of it; that they quarrelled about it, but the defendant finished the fence, as it was originally built by him on July 20, 1885, and swore he would whip the plaintiff, if he pulled it down again; that the plaintiff said he would let the court decide the dispute and employed counsel promptly to bring suit, but it was not brought till a month afterwards; that in the mean time the land in dispute being meadowland, neither party exercised any acts of ownership over it, except that the defendant pulled down gradually some four or five panels of the old fence which divided the two farms, and burned them for fuel, thus putting the land in dispute into the same enclosure with a small lot on his farm, which ran up to his house, but as this lot had been in meadow also, there was no stock put upon it during the month, which elapsed, before this suit was brought after it was enclosed in this manner with the land in dispute; that during this time the plaintiff had no possession of the land in dispute, unless such possession can be inferred from his having the key of the old unoccupied frame house on it, or from his sons gathering, without his direction, four or five bushels of apples from the orchard on the land in dispute and putting them in the old frame-house on the disputed land.
When the plaintiff had finished his evidence, which establishes the above state of facts, the defendant moved the court to exclude the plaintiff's evidence, on the ground that it was insufficient to maintain his suit. It being near the hour of adjournment, the court held the question over one night for consideration. When the court opened the next morning, the plaintiff moved, that he be allowed to re-call the witnesses and offer other testimony-in-chief, because his counsel said, they had not been able the day before to bring out the facts within the knowledge of the witnesses, who had been examined. This motion was granted, the defendant objecting. The plaintiff and one of his sons were then re examined-in-chief and cross-examined; but their evidence did not materially change the case, as it was shown by the evidence given on the day before. The defendant then renewed his motion to exclude from the jury all the plaintiff's evidence, which motion the court overruled, and the defendant excepted.
The following instructions were given to the jury by the court on the motion of the plaintiff and excepted to by the defendant:
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